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November 03, 2024 - 12:30 PM
A Kelowna daycare is on the hook for $10,000 after it short-changed a former staff member when she left the job.
According to an Oct. 17 Employment Standards Tribunal decision, Creative Advantage Childcare failed to pay former early childhood educator J.F., $9,365 after she left the Kelowna daycare having worked there for more than seven years.
The daycare was also fined $1,000 for breaching the Employment Standards Act and not paying J.F. the seven or eight weeks of wages for the length of her service or the correct vacation pay.
However, Creative Advantage Childcare appealed the ruling, saying the Tribunal had made errors and that new evidence had become available that was not available at the time.
It's not the first time Creative Advantage Childcare has lost at the Employment Standards Tribunal.
In 2019, it was ordered to pay $1,706.99 in unpaid wages and a $1,500 fine after it fired a staff member when she handed in her two weeks notice.
The daycare said she was fired and not to come in and therefore wouldn't be paying the staffer for the next two weeks.
After being ordered to pay, it lost two separate appeals over the matter.
Details of what took place in the current case are scant in the decision but J.F. worked at Creative Advantage Childcare from 2015 to 2022.
In February 2022, the daycare terminated J.F. for just cause saying she lacked the temperament to work with children, and her actions and inactions compromised child safety. The daycare did not explain why she was employed for seven years if she "lacked the temperament to work with children."
In an earlier ruling, the Tribunal found that the daycare had not proven that J.F. lacked the temperament to work with children or that her actions compromised child safety. It also ruled that the daycare had not dismissed her for "just cause" and therefore ordered the daycare to pay compensation for length of service.
In the daycare's appeal, it argued the Tribunal made errors and in one instance suggested that the Tribunal could have "conducted a search on the internet" to clarify a government pay subsidy.
The daycare goes on to accuse the Tribunal of "acting without any evidence" and "adopting a method of assessment that is fundamentally wrong" but the Tribunal pointed out the daycare had failed to specify to what aspects of the case these statements applied to.
Creative Advantage Childcare argued new evidence had come to light that wasn't previously available.
In the decision, the daycare also said it did not submit all of this evidence previously because it was unaware that it would have to prove its written statements.
However, the Tribunal said that during the original complaint process, it was "explicitly" told to submit evidence to support its position.
The Tribunal said that while one piece of evidence may have some value the daycare failed to disclose it the first time around even though it was in its possession. This meant it couldn't be accepted as "new evidence" under the rules.
"I also find that the majority of the new material submitted by the (daycare) is not probative in that it is not capable of resulting in a different conclusion than what is found in the (original) determination," the Tribunal ruled.
Ultimately, the Tribunal dismissed the appeal and ordered the daycare to pay Fojt wages of $10,365.
The full Employment Standards Tribunal decision can be found here.
— This story was updated at 4:50 p.m. Friday, Nov. 8, 2024 to anonymize the complainant's name.
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